Stay granted: GOP pick for Bloomington plan commission won’t be seated pending appeal

Andrew Guenther will not be serving as a Bloomington plan commissioner—at least not for the next several months—even though a mid-November order from special judge Erik Allen installed him in a plan commission seat effective immediately.

On Monday morning, Allen granted a request
from the city of Bloomington for a stay of his November order, pending the appeal for which the city has given notice.

That means Chris Cockerham will continue serving on the Bloomington plan commission while the appeal is battled out in court.

The order granting the stay came the morning of the same day when the plan commission next meets—Monday at 5:30 p.m.

The stay means that it will be Cockerham, not Guenther, who appears in the Zoom videoconference square for the plan commission’s Monday night meeting.

The end of 2021 will mark the half-way point in the four-year term of the disputed plan commission seat. It is conceivable that the appeal could take up much of the remaining two years in the term.

It was in mid-2020 when the lawsuit over the plan commission seat was filed by Monroe County Republican Party chair William Ellis and Andrew Guenther.

Bloomington’s mayor, Democrat John Hamilton, left vacant for more than 90 days the plan commission seat previously held by Nick Kappas, who was not reappointed by Hamilton at the start of 2020.

So Ellis used a state law that allows a party chair to make an appointment to a partisan-balanced group like a plan commission, if the entity that normally makes the appointment leaves the seat vacant. It’s the same state law that allowed Ellis in late 2020 to make what would have normally been the Bloomington city council’s pick for the Bloomington Transit board.

Guenther was Ellis’s pick for Bloomington plan commission. Guenther is currently a graduate student at Indiana University and serves as the chair of Bloomington’s environmental commission. Cockerham, who is a real estate broker, was Hamilton’s pick.

A key question of law in the case is whether the partisan balancing requirement for a plan commission in the state of Indiana requires affiliation with some party or other. Ellis and Guenther say yes. Bloomington says no.

What both sides agree is that the disputed seat cannot be filled by a Democrat, on pain of pushing the total number of Democrats to four among the five plan commission seats that are appointed by the mayor.

What the status is of plan commission decisions made with Cockerham as a member, if Cockerham is eventually found on appeal not to be the rightful appointee to the seat? Are those decisions still valid?

As previously purported by The B Square, Bloomington’s legal team says Cockerham’s participation in votes on the plan commission, even if he is eventually found not to be the rightful appointee, would still be valid. The statement from the mayor’s office read:

Indiana courts have long recognized and applied the ‘de facto officer doctrine.’ In its briefest formulation, from the United States Supreme Court, the de facto officer doctrine ‘confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.’ Ryder v. United States, 515 U.S. 177, 180 (1995). [T]here is no question that Commissioner Cockerham satisfies the elements required to fit within the protection of the de facto officer doctrine, and his actions cannot be subsequently called into question.

Both Cockerham and Guenther were appointed as Republicans to the plan commission in 2020—Cockerham by Hamilton, and Guenther by Ellis. As non-Democrats they both helped satisfy the partisan balancing requirements for a plan commission.

One of the more curious wrinkles in the case is that Guenther declared publicly that he was resigning from the Republican Party on Jan. 2 this year.

The city of Bloomington’s request for a stay mentions Guenther’s resignation from the GOP as an argument for granting the stay: “Additionally, after January 2, 2021, Andrew Guenther resigned from and no longer claimed an affiliation with the Republican Party. It is unclear whether he remains eligible to serve on the Plan Commission under the legal conclusions adopted by the Court given his current status as a political independent.”

But the state law defining the partisan affiliation of a potential appointee ties the definition of the required partisan connection to the time when the person is appointed: “[A]t the time of an appointment, one (1) of the following must apply to the appointee….”

Making that point was the objection Guenther and Ellis had filed to a possible stay:  “At the time of his appointment to the Plan Commission, Petitioner Guenther was a registered Republican. The Court’s Findings of Fact, Conclusions, and Judgment, Finding 37, clearly considered the fact that on ‘January 2, 2021, Andrew Guenther publicly resigned from the Republican Party.’”

The plan commission’s agenda for Monday includes a site plan approval requested by Strauser Construction Company to build a six-story building with 105 apartments with a total of 255 bedrooms. The current parcels have a total of 33 dwelling units.

The plan commission meeting starts at 5:30 p.m.